A political party that wants voters to give them control of Congress also wants you to believe that a man is guilty until proven innocent; that presumed guilt is contingent on gender and race; and that sitting on accusations until the midnight hour is not a manipulative, politically-motivated stunt. With all due respect to victims of sexual predation from both genders (oops, perhaps I should have said all genders), the allegations and smears against Brett Kavanaugh smack of political motivation, and you can bet Kavanaugh’s detractors are proud of it.

First there was Professor Christine Ford’s allegation about an assault 36 years ago at a party that no one remembers, including her. Then there are the cloudy and shifting recollections of Deborah Ramirez about a dorm party at Yale 35 years ago at which she thinks Kavanaugh exposed himself as part of a drinking game, but no one else seems to recall that event either. In fact, it’s reported that Ramirez was not going forward with the claim until she was sought out by congressional Democrats. And then there is Michael Avenatti, the cartoonish attorney for porn star Stormy Daniels, who says that Kavanaugh and a buddy, Mark Judge, regularly drugged women and arranged for “trains” of men to rape them. Avenatti now says one such woman will come forward within 48 hours. Perhaps she’s still negotiating her deal with Avenatti. Why, you could almost get the idea that Democrats are actively recruiting accusers.

Here’s what Charlie Martin said:

“Okay, so we’re up to Kavanaugh and Mark Judge supposedly pimping out drug-addled high school girls to pull a train with classmates without anyone mentioning it for 36 years. Do the accusations of Satanic abuse and child sacrifice hold off until Wednesday, do you think?”

Ford claims that Judge Brett Kavanaugh, 36 years ago as a teenager, sexually abused her at a high-school party while his friend, Mark Judge, watched. She claims Kavanaugh pushed her down on a bed, groped her, attempted to remove all or part of her one-piece swimsuit, and placed his hand over her mouth to silence her protests before Master Judge piled on top, causing the three to fall off the bed and allowing her to escape from the room.

Democrats say this allegation should keep Kavanaugh off the Supreme Court or delay any vote on his appointment until after a full investigation by the FBI. Let’s review some facts in the case:

Ford can’t recall a specific location, how she got there or how she got home, how she wound up in the upstairs bedroom with the two boys, the name of the party’s host, or more specifics about the date of the alleged assault.

Ford says she never told anyone about the incident until years later when she revealed it to a therapist, whose notes say there were four people in the room and do not mention Kavanaugh.

The allegation was made by Ford in a letter to Senator Diane Feinstein on July 30, five weeks before the Senate Judiciary Committee held hearings on Kavanaugh’s nomination to the Court. Feinstein did not mention the letter during the hearings. She revealed it’s existence just a few days before a scheduled Committee vote on the Kavanaugh nomination, six weeks after her receipt of the letter. Feinstein has refused to reveal the unredacted contents of Ford’s letter to the Judiciary Committee.

Kavanaugh has denied the allegation and says that it could be a case of mistaken identity. Kavanaugh’s friend Mark Judge denies that the incident took place.

Ford named two other individuals as potential witnesses who could place both Ford and Kavanaugh at the party in question. Both have stated that they are unable to do so. The first, another male friend of Kavanaugh’s, released a statement praising Kavanaugh’s integrity. The second, a woman, stated that she does not know Kavanaugh and is unable to place the two at a party together. That’s a total of three witnesses who say they didn’t witness anything.

Some 200 alumni of Ford’s private all-female high school wrote a letter in support of Ford, but many of them are not even contemporaries of Ford and Kavanaugh.

Some 65 women who knew Kavanaugh during his high school years have signed a letter vouching for his character; a number of college and law school classmates as well as high-profile female attorneys who have worked with (and for) Kavanaugh have publicly stated their support and vouched for his integrity.

Originally, Ford and Kavanaugh both agreed to appear before the Judiciary Committee on Monday, Sept. 24; the vote on Kavanaugh’s nomination was delayed a week. Subsequently, Ford stated that she would not appear before the Committee until the FBI had completed an investigation of the incident.

The charge would not be a federal crime, so the FBI declined to investigate.

Later, she expressed a willingness to appear under the right conditions, but not as soon as Sept. 24; only questions from Senators; Kavanaugh cannot be in the same room; and Kavanaugh must go first.

After a week of repeated requests through Ford’s attorneys and several “deadlines” set by the Committee Chairman, it now appears that the hearing will take place on Thursday, Sept. 27, but the terms have not been fully settled.

I think the Committee Chairman, Chuck Grassley, got played in accepting the delays. It allowed the Democrats to raise these unprovable accusations in a campaign against Kavanaugh in the media. It also invited the very bandwagon effect of unfounded accusations we are now witnessing, as the underhanded effort to block Kavanaugh’s appointment began to bear additional fruit.

The alleged crime occurred when both Ford and Kavanaugh were minors (Ford was 15, Kavanaugh 17). The statute of limitations applicable to minors in the state of Maryland, where the alleged incident occurred, is three years or until the “injured party” reaches the age of majority. It is therefore too late for Ford to file criminal charges against Kavanaugh. The statute of limitations is reasonable to the extent that teenagers do a great many stupid and harmful things for which they should not necessarily be held responsible as adults. Sexual aggression, if proven, may well cross a line depending on its character and severity, but from a legal perspective that line is determined, in part, by the victim’s determination to bring charges at a time when the charges can reasonably be investigated. Ford did not bring them, and she did not so much as mention them to anyone for about 30 years.

Ford has been involved in some left-wing activism, but her social media profile was scrubbed before the allegations went public. Her attorney, Debra Katz, has been a prominent member of the MeToo movement. This has, quite naturally, contributed to suspicions that the entire matter is a political stunt. That’s reinforced by Feinstein’s delays in making the matter public, Feinstein’s refusal to release Ford’s letter without redactions, and by the repeated delays in Ford’s commitment to testify before the Committee. In fact, Ford claimed that she cannot appear before the Committee until late next week because she must drive from the west coast to Washington, DC. That’s because Ford says she has a fear of flying and “closed spaces”. Not only that, these fears originated with Kavanaugh’s alleged attack. Just wow! The author at the last link wonders whether Ford took a boat to her internship in Hawaii a few years ago, avoided elevators for 36 years, or perhaps managed her issues with medication.

Ford’s high-school yearbooks were available on-line until just a few days ago, when they were suddenly taken down by the affluent private girls school she attended. The yearbooks do not reflect directly on Ford. They are, however, a bit surprising because they were presumably overseen by faculty, and yet they celebrated heavy drinking and the joys of blacking out, promiscuity, and they even contained hints of racism. The fact that the yearbooks were suddenly removed from the internet reflects on Ford’s defenders, who must have felt that the books would damage her credibility.

Again, the terms of the hearing involving Ford and Kavanaugh are still up in the air. Ford’s insistence that Kavanaugh should testify to the Committee prior to her is contrary to the normal procedure in any case involving criminal charges. The Senate follows the same rules. Putting Kavanaugh in a different room would deny him his right of habeas corpus. The Committee chairman has also suggested that questioning would be handled by a female attorney. Given these differences, it is far from certain that Ford will ever appear before the Committee.

The letter to Feinstein, as it turns out, was drafted by Ford at the senator’s request after Ford had first consulted her congresswoman, Anna Eshoo, earlier in July. The redacted portions of that letter are of interest. After all, they may either bolster or weaken the credibility of the charges. However, if there are allegations in the letter that are false, and if they were revealed to the Committee, it would expose Ford to criminal charges and imprisonment. Could this be why the full letter has been withheld by Feinstein?

However much we might desire justice for victims of sexual abuse, and however much we might sympathize with a victim’s emotional difficulties attendant to such an attack, those matters cannot be used to deny the due process rights of an accused. Society cannot simply take an accuser’s “word for it”, especially when the accuser declines to take action within a reasonable period of time, one within which evidence and testimony might be gathered effectively. While the evidentiary standards in a criminal proceeding might be more stringent than in assessing an accused individual’s fitness for high office, mere late-hour assertions are not adequate when the record, as in Judge Kavanaugh’s case, is so exemplary, and when there is absolutely no corroboration. Indeed, it is dubious to raise serious allegations of this nature when they are unprovable, and only when the alleged attacker is due to receive a prominent appointment of some kind. Ford’s allegation, and the others, have all the earmarks of a politically-motivated smear campaign.

Of all the health care buffoonery we’ve witnessed since the Affordable Care Act (ACA, or Obamacare) was first introduced in Congress in 2009, one of the most egregious is the strengthening of the notion that health insurance should cover a variety of wholly predictable, and strictly speaking, non-insurable events. Charlie Martin recently posted some interesting comments on insurance and why it works, and why public perceptions and public policy are often at odds with good insurance practices. He says that “Insurance Is Always Just Gambling“. True, real insurance is like any other rational hedge against risk, and that can be called a gamble. Unfortunately, public policy often interferes with our ability to hedge these risks efficiently.

Hedged Risk Or Prepaid Expenses?

To begin with, insurance is a mechanism for individuals to manage the financial impact of events that are unpredictable and potentially costly. These are insurable risks. But if an event recurs regularly, like an annual physical exam, a breast exam, or a pap smear, or if an event is largely within the individual’s control, like whether an ugly mole should be removed, then it is not an insurable risk. Paying for such “coverage” through a third-party insurer amounts to prepaying for services for which you’d otherwise pay directly when the time comes. We’ve essentially adopted this prepayment scheme on a national scale through Obamacare’s mandated benefits: we get broad coverage of non-insurable events in exchange for premiums and/or deductibles high enough to cover the prepayments! Big win, huh?

The rationale for a broad coverage mandate is that it will induce healthy behaviors like, well… getting an annual checkup. Therefore, it is said to be in the interests of insurers to include such benefits in basic coverage. That might well be, but the insurers don’t do it for free! Indeed, a combination of premiums and deductibles are correspondingly higher as a result, and the mandate introduces a “middle man”, the insurer, who adds cost to the process of executing a relatively simple transaction.

Unlike these prepaid health care expenses, real insurance is really a sort of gamble. An insurer makes a bet that you won’t have a major, unanticipated health care need, and you put up the “premium” as your bet that you will have such a need. If you are healthy, then the odds are low, so it’s a fairly cheap bet for you, but you have to put up a little extra to pay for your insurer’s administrative costs. Down the road, if you need acute care, your bet pays off. Yippee! You’ll be covered.

But who knows the odds that you’ll need expensive care? And why would an insurer take the risk of losing big if you get sick?

The insurer can estimate those odds via actuarial data and experience, and they can assume your risk by playing the law of large numbers: if they make similar bets with many individuals, their actual losses will be more than covered by premium revenue (most of the time… as Martin explains, it’s possible for an insurer to make a bet with a so-called reinsurer as a hedge against the small risk of a huge loss on its book of business, beyond some threshold).

Shared Risk Or Shared Cost?

Martin objects to the use of the term “shared risk” in this context. Many individuals make similar bets, which makes the insurer’s aggregate payout more predictable. That allows them to offer such bets on reasonable monetary terms, and they are all voluntary contracts sought out by people facing risks of the same character. If an individual seeks to insure against a demonstrably heightened risk, an insurer might or might not agree to the “bet” voluntarily, but if it does, the risk is not truly “shared” by individuals who face lower risks. The high-risk bet is reasonable for the insurer only to the extent that: (1) the premium is actuarially fair in conjunction with a larger pool of high-risk bets, or (2) it can be cross-subsidized by more profitable lines of coverage. If the answer is (2), then premiums for healthy individuals must rise to cover risks they do not share. That is one basis under which Obamacare operates and it is a subtle aspect of Martin’s argument against the notion of “shared risks”. Perhaps we can avoid the semantic difficulty by speaking of “sharing the costs of risks that are not shared”.

A more obvious aspect of Martin’s objection to “shared risk” relates to the expectation that predictable medical costs must be “covered” by health insurance, as discussed above. If so, no risk is shared because there is no risk! Yet we often speak of health insurance “needs” as if they combine a variety of such things, and as if all those “needs” embody risks that are shared. They are not.

Sharing the Cost of Prenatal Care

In another post, Martin tackles the question of whether certain people should be expected to pay a premium that includes the cost of prenatal care. Martin was prompted by a tweet from the National Association for the Repeal of Abortion Laws (NARAL), which read:

“WOW. The #GOP’s reason to object to insurance covering prenatal care? ‘Why should men pay for it?’ #Trumpcare #ProtectOurCare”

There was a link in the tweet to a video, which was captioned by NARAL as follows:

To the extent that pregnancy can be considered a risk, it is certainly not shared by seniors, gays and lesbians, and infertile individuals, let alone unattached males. And from an insurance perspective, an obvious difficulty with NARAL’s point is that many pregnancies are planned. As such, they are not insurable events (though complications of pregnancy clearly are insurable). Yet people speak as though others must “share” the costs. That is fundamentally unfair and economically inefficient. Subsidies for couples who might wish to have children lead to greater rates of fertility than those couples can otherwise afford, saddling society with the medical bill. Incentives are no joke.

There are also unplanned pregnancies among singles and married couples, however. That sounds more like an insurable event, but it’s usually impossible for a third party to determine whether a pregnancy is planned or unplanned, so moral hazard is an issue (except in extreme circumstances like rape or incest). The risk of pregnancy is confined to a subset of the population, so sharing these costs more broadly is inefficient to the extent that it subsidizes some pregnancies (oops!) that individuals cannot otherwise afford. Individuals and couples who face pregnancy risk must manage that risk in any way they chose, and they might wish to purchase a form of coverage that will help them smooth the cost of pregnancies over their fertile years. It’s not clear that coverage of that nature is better for the prospective parent(s) than a line of credit, but it is a form of insurance only because of the “unplanned” component, and at least it allows them to spread the cost ex ante as well as ex post.

Sharing Costs of Common Risks

The basic point here is that sharing a risk across all individuals, whether they do or do not actually face the risk, is not a natural characteristic of private insurance. In fact, the idea that this cost should be shared broadly is a collectivist notion. The major flaws are that 1) individuals and couples at risk are not financially responsible for certain cost-causing decisions they might make; and 2) it forces individuals and couples not at risk to pay for others’ risks, which is an act of coercion. NARAL feels that individuals who subscribe to these sound principles are worthy of rebuke. And NARAL asserts that “men pay a tiny bit more“, without providing quantification. Of course, it’s not just men, but this is a variation on the old statist argument that diffuse costs are not meaningful and should be disregarded, ad infinitum.

Public Aid Dressed As Insurance

There are segments of society that are often depicted as incapable of managing risks like pregnancy and unable to afford the consequences of mistakes. Subsidizing those individuals is a second collectivist front for “risk sharing”. Those subsidies can and do take the form of “family planning”, as well as prenatal care and childbirth. That’s part of the social safety net, and while it is perhaps more tolerable as aid, it entails the same kinds of bad incentives as discussed earlier.

The welfare state has seldom been praised for its impact on incentives. Most studies have found a link between public aid and higher fertility, and mixed effects on the dissolution of marriage (see here and here, and for international evidence, see here). But aid for health care expenses should not interfere with the sound operation of the insurance market. Vouchers for catastrophic coverage would be far preferable, and that aid could even cover some regularly recurring health care costs, despite their non-insurable nature, but that would be a compromise.

The misgivings voiced by Martin are partly driven by two fundamental issues: guaranteed issue and community rating. The former means that an insurer must take your bet regardless of the risks you present; the latter means that the insurer cannot charge premiums commensurate with the risk inherent in the various bets it takes. As David Henderson writes, both underpin the ACA. In other words, the ACA imposes cost sharing. Here is Henderson:

“As I wrote over 20 years ago, the combination of guaranteed issue and community rating, a key feature of Obamacare, leads to the destruction of insurance markets. No one would advocate forcing insurance companies to issue house insurance policies to people whose houses are burning, at premiums equal to those paid by others whose houses aren’t burning. And the twin requirements would cause more and more people to refrain from buying insurance until their houses are on fire. Insurance companies, knowing this, would charge astronomically high premiums.“

In advanced civilizations the period loosely called Alexandrian is usually associated with flexible morals, perfunctory religion, populist standards and cosmopolitan tastes, feminism, exotic cults, and the rapid turnover of high and low fads---in short, a falling away (which is all that decadence means) from the strictness of traditional rules, embodied in character and inforced from within. -- Jacques Barzun